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1991-03397-Minutes for Meeting January 30,1991 Recorded 2/8/199110 6 016 6 MINUTES MARKEN SURFACE MINING DECISION 1 FES - M : 18 DESCHUTES COUNTY BOARD OF COMMISSIONEEQ D + 3 January 30, 1991 ;~y= T ' Chairman Maudlin opened the meeting at 9 a.m. Board members in attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Bruce White, Assistant Legal Counsel; George Read, Planning Director; Dave Leslie, Planner; and Karen Green, Community Development Director. Chairman Maudlin said that the purpose of this meeting was to make a decision on the proposed Marken surface mining site located on Rickard Road. Since Commissioner Schlangen was not on the Commission when the public hearing on this issue was held, the decision would be made by Commissioner Throop and himself unless they were unable to agree, in which case, Commissioner Schlangen would break the tie. He said the Board was attempting to be as consistent in its surface mining decisions as possible. Commissioner Throop said he felt the Marken site should be placed on the inventory. Concerning whether there was a need for the resource, he felt the Marken site needed to be evaluated as if the Rose site was operational. The Rose site would fulfill the need for select material for "some decades to come," therefore the relative value of the Rose site was so much greater than the Marken site that it substantially diminished the need for material from the Marken site. He said the conflicting resources and uses outweighed the need for the select fill resources from the Marken site. The conflicting resources needed to be protected from the extraction of minerals from this site, and the two could not satisfactorily coexist nor be sufficiently mitigated. There were important wildlife values in the historic winter deer range in the area. The cumulative impacts of adding the Marken site to the existing pressures on the historic winter range was an issue. The conditions proposed by the applicant would not have provided adequate protection for wildlife resource, but the Oregon Department of Fish and Wildlife had suggested a mitigation plan, therefore the wildlife resource probably could be mitigated. The BPA utility corridor and the unvacated county road could also be mitigated. However, he did not feel that the traffic issue could be mitigated. The urban growth boundary was less than a mile away. The Bend/LaPine School District had plans for a major school complex in the southeast corner of the urban growth boundary but outside the half mile impact area. There would potentially be a junior high school, elementary school and bus barn facility for all of their transportation. The proposed site was also located at the terminus of the rural southeast quadrant traffic from both farms and rural residential development in the area. After reviewing all of the testimony, he felt that adding the Marken site to the rural PAGE 1 MINUTES: 1/30/91 'PUNCHED E8 11 i q: 1QG - 0167 residential traffic, farm traffic, landfill traffic, potential school traffic, and Rose site traffic would create too much impact and couldn't be mitigated. To meet on-site noise requirements would require very extreme measures by the applicant, including unrealistically large berms (from 15-22 ft. in height) which would be difficult to maintain in a manner compatible with the neighborhood. He felt strongly that the noise would have direct impacts on some of the rural residential uses. Adding the Marken site noise to the noise from the landfill and noise from the Rose site would make the community of effects unsatisfactory. DEQ did not have the resources to enforce noise standards, and they might be getting out of enforcement of noise standards. Even if the issue of noise impacts was a close call, the risks were too great because of the lack of enforcement. Concerning the dust issue, by adding the Marken site to the landfill and the Rose site, he felt the community of impacts on the neighbor would be too great, and would be exacerbated by ridiculously large berms of dubious value. If the berms were made out of top soil from the site, which was proposed, it would make matters worse. He felt the area was dedicated to existing agricultural and rural residential uses and had already had more of its share of tradeoffs and contributions to the community when considering that the regional landfill was in this area, the Rose site was there, as well as the future school buildings and transportation center. He felt the relative need for the material was low, the impacts were too great and couldn't be sufficiently mitigated, and he would not support surface mining zoning for this site. Commissioner Maudlin said he had been consistently seeking ways to preserve surface mining sites, but in this case he could not find any way to preserve this site since the Board had placed such stringent conditions on the Rose site. He would not be willing to place any less stringent conditions on the Marken site. Since the Rose site had been zoned for surface mining, cumulative impacts had to be considered. He felt material would have to be hauled in to make a berm 15 feet or higher, and they'd have to strip top soil from the whole 30 acres at one time, which he was not willing to allow. He felt there were a number of things which could be mitigated, but to mitigate the traffic would require conditions which would make mining economically impossible. He didn't know how to address the wildlife in the area. His major concern was that the Board needed to be consistent in its decisions, and therefore the same restrictions would need to be placed on the Marken site as were placed on the Rose site across the road. He was not in favor of allowing the Marken site to be zoned as a surface mining site. THROOP: I would move that the Marken site be added to the inventory, that the Board determine that the resource value of the Marken site is outweighed by the conflicting resources and uses, and that the request for a zone change be denied. PAGE 2 MINUTES: 1/30/91 106 - 0168 MAUDLIN: I will second the motion. Bruce White suggested that the Board make findings of their reasons for putting the site on the inventory in terms of quality, quantity, and location. Commissioner Throop said that the information indicated that the quality of the material at the Marken site was good, select fill material. The quantity was approximately 400,000 cu. yds, but in comparison to the Rose site, it did not appear to be significant. It was sufficient quantity, however, to be placed on the inventory. the location was within a mile of the urban growth boundary and was therefore appropriate for the inventory. Bruce White asked if it was also the Board's finding that the impact area should be consistent with what was used previously which was one-half mile. He said the Board was required to set out what it believed to be the impact area. Commissioner Throop said he believed that legally the impact area was one-half mile, but he personally believed that the impact area was larger. He felt the County Public Works complex, the new school complex, and a number of agricultural units and rural residential unit which were just outside the half mile would have some impacts. He did not want it interpreted that there were no impacts outside the half mile. Commissioner Maudlin said that he probably did not agree with Commissioner Throop. He felt the Board was bound to the half mile impact area, however, the impacts within the half mile area were certainly large enough to deny the zoning. He said there was no conflicting testimony regarding the quality and quantity on this site. Commissioner Throop said another concern was that the cumulative impacts of noise from the Marken site might adversely impact the ability of the Rose site to operate; and when looking at the relative value of the two sites (7.5 million cu. yds at the Rose site versus 400,000 cu. yds. at Marken), it was an important consideration. Bruce White said he felt the motion needed to include that the Board was denying the amendment to the comprehensive plan. The Board would not need to consider the site plan criteria since it was contingent upon approval of the plan amendment and zone change. THROOP: The intent of the motion was certainly to include both the plan amendment and the zone change. MAUDLIN: I'd like to withdraw the second and have two separate motion. PAGE 3 MINUTES: 1/30/91 k 106 - 0169 THROOP: I'll withdraw the motion. THROOP: The new motion is that the Marken site be added to the inventory for the reasons described under prior discussion. MAUDLIN: I'll second that motion. VOTE: THROOP: YES MAUDLIN: YES THROOP: I'll make another motion and that's that the Board determines that the resource values at the Marken site are outweighed by the conflicting resources and uses and that the plan amendment and zone change request be denied. MAUDLIN: I'll second that motion. Bruce White asked, for clarification., if that weighing value considered possible mitigation measures? Commissioner Throop said that it clearly was considered as indicated in prior discussion. VOTE: THROOP: YES MAUDLIN: YES Bruce White said that the issue of the applicant's request for a refund of the appeal fee needed to be dealt with by the Board. Chairman Maudlin continued the meeting until 10:30 a.m. when the refund issue would be considered. Chairman Maudlin reconvened the meeting at 10:30 a.m. In attendance were Commissioners Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were Rick Isham, County Counsel; Bruce White Assistant County Counsel and George Read, Planning Director. Bruce White said the refund issue was probably appealable to LUBA. The issue was raised in the applicant's notice of appeal, and he addressed it at the public hearing prior to it being opened for oral testimony. He felt the County could make the argument that the applicants had waived their right since they never argued the point or briefed it. He said it was a legal issue and not a factual issue. Commissioner Maudlin said since the applicants did not bring the issue up, he felt they had waived their rights. Rick Isham said the issue was in the record since the notice of appeal would be in the record. PAGE 4 MINUTES: 1/30/91 I 106 - 0170 THROOP: The Board finds that that issue was waived and is not an issue before us because it wasn't argued or briefed during the appeal hearing. If anyone does assert that it is a live issue for some body of jurisdiction in the future, it's clearly our position that the plan amendment, in conjunction with the zone change and site plan, does not constitute a waiver or the equivalent of a waiver under law, and we do find that the fees are appropriate. Bruce White said what he understood the motion to be was that ORS 215.431, which required that a plan amendment be heard without an appeal fee, did not apply in this case since this appeal also included applications for a site plan and zone change. Because of the inclusion of the zone change and site plan, the County was allowed to charge an appeal fee. Commissioner Throop said that was exactly what he meant. MAUDLIN: Second. VOTE: THROOP: YES MAUDLIN: YES Bruce White made clear that the previous motions were to approve the plan amendment to put it on the inventory, denied the plan amendment which would allow the mining, and denied the zone change. DESCHUUTTE COUNTY BOARD OF COMMISSIONERS Tom Throop, Commissioner Dick Maudlin, Chairman BOCC:alb PAGE 5 MINUTES: 1/30/91